Reading last Thursday’s Supreme Court decision on non-recess “recess” appointments, the first thing that struck us was that the opinion was written by Justice Breyer, a reliable Liberal. Then came the Conservative commentary in full celebration mode, trumpeting a 9-0 smackdown of administration lawlessness.
Sorry, it was a setback, not a smackdown.
Justice Antonin Scalia wrote a concurring opinion noting that the Constitution specifically allows recess appointment to positions vacated during a recess and defining the recess as the break between sessions, not a brief interruption of Senate business. Obama’s National Labor Relations Board appointments met neither standard. Anyone who finds this confusing probably has something up his sleeve.
In finding the appointments unconstitutional, the court’s Liberals didn’t warn Obama not to try it again so much as counsel him that he might have gotten away with it if only he hadn’t been so eager.
The Liberals ruled that “a recess of more than 3 days but less than 10 days is presumptively too short” to meet the requirements of the Recess Appointments Clause. Translation: Have Harry Reid keep the Senate in recess for ten days and wave through any appointees who are too politically radioactive to be confirmed.
Scalia wrote that the court’s majority “replaces the Constitution’s text with a new set of judge-made rules” that may or may not reduce recess appointments but will “have the effect of aggrandizing the Presidency beyond its constitutional bounds and undermining respect for the separation of powers.”
There are two and a half years left for Obama to hone his lawbreaking skills, and we don’t know what will follow him. By way of undoing a couple of years of bad practice last Thursday, the court may have opened the door to—in Scalia’s word—“unimagined” abuses later on.